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Should certain drug dealers, users get lighter sentences?

This is a rush transcript from "The Five," August 12, 2013. This copy may not be in its final form and may be updated.

DANA PERINO, CO-HOST: The Obama administration wants to cut down the prison population in America and here is part of their plan. End mandatory minimum sentences for low level drug offenders and allow for the release of some elderly, non-violent offenders.

Attorney General Eric Holder announced the proposal at a speech in San Francisco earlier today.

(BEGIN VIDEO CLIP)

ATTORNEY GENERAL ERIC HOLDER: We need to ensure incarceration is used to punish, to deter, and to rehabilitate, but not merely to warehouse and forget. This is why I have today mandated a modification of the Justice Department charging policies so that certain low level, nonviolent drug offenders who have no ties to large scale organizations, gangs or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences.

(END VIDEO CLIP)

PERINO: OK. We could talk about this for the whole hour, only have one block. I am going to make it quick as possible.

So, let me start with Eric because people might be surprised that you and the attorney general agree about this.

ERIC BOLLING, CO-HOST: We do. I love the idea of letting -- taking it out of the fed, don't make it a federal issue, bring it to the states, let the judges at the state level make the decisions. I don't like the mandatory -- think what would happen if Bill Clinton, George Bush or Barack Obama were caught any of these times under this scenario. We would have three different presidents, 42, 43, 44 would be different because the mandatory sentencing, they wouldn't be able to do it.

I just like the idea. I am still against legalizing the drugs. I just think it should be held at the state level.

PERINO: Well, I was going to ask, Kimberly, how does that work, though? What Eric Holder asks is that the U.S. attorneys take a look at their local area and come back to him with a plan for how you could take a minimum sentencing, maximum sentencing -- I'm sorry, or minimum I guess it is minimum, and change it to meet your local needs.

How does that work if drugs are illegal federally?

KIMBERLY GUILFOYLE, CO-HOST: He is circumventing the federal authority, I don't think what he's doing is legal, to be perfectly honest with you, but that never stopped him before. I mean, this is Eric Holder. He is now the drug czar afternoon sentencing czar.

Now, do I believe this is an area that needs improvement? Yes, I have seen there's not enough discretion when you have federal guidelines and you're seeing people low level wrapped in something and go away for life, there's disparity.

So, should there be uniformity? Yes. But he is going about it in the wrong way. If the law is on the books, you have to follow the law. You can't selectively use that, using this as a test case, to be perfectly honest, because it's politically popular.

BOB BECKEL, CO-HOST: Every law that passes Congress has to be regulated and interpreted by the executive. This happens all the time. I think he is exactly right.

Look, what we're doing is taking low level drug guys, turning them into high level drug guys. They get out of prison, and they're going to go out -- the only thing they have to do then is deal drugs. It is the most ridiculous, absurd idea.

You know who is leaving the way on this? It's judges. Judges that don't want this to happen. They want the leeway to do what's right.

And three strikes and you're out (INAUDIBLE) Ronald Reagan and all those --

GUILFOYLE: That's for violent crimes, Bob --

BOLLING: Wait, wasn't that Clinton?

(CROSSTALK)

PERINO: OK, Greg, you might have a different opinion.

GREG GUTFELD, CO-HOST: I am for decriminalization of drugs, not decriminalization of criminals. That's the issue I have with this, even though I am halfway in the camp. It is too vague for me.

I don't know what a low level user is. I don't know if low level is user or dealer, is he just half a Crip? I don't know.

The other thing, too, is about releasing the elderly. Everybody expects to see Wilford Brimley when we have to remember Charles Manson is 70. An old felon can still be a felon. But having said that, I think this is an encouraging thing, because when you look at the real problems in communities today, it has a lot to do with delinquency and family structures.

If this returns fathers who let's say are not hardened criminals into their families and helps create family structure which was missing before because one was in jail, if this actually leads to that, yay. But I don't know. I am suspect of Eric Holder. So many things he does, he is never addressing the overall American good but the things that are on the edges.

He never focuses on the law abiding citizen, the concern is always on the other side. However, I am saying I hope he is right.

BOLLING: I'm sorry to interrupt, Greg. What it allows you to do, let's governors decide to what extent to punish what levels.

(CROSSTALK)

BOLLING: It doesn't put a mandatory overall blanket on a violation.

Chris Christie in Jersey said, you know what, we're going to work with lower amounts on certain drugs like pot, give kids or people treatment rather than going to jail.

BECKEL: Let me tell you, the cost of incarcerating a prisoner in jail is very, very high. It is costing society a lot of money. I have a situation --

GUTFELD: It will cost us money when they get out, by the way.

PERINO: Yes, that's my point. One of the arguments is while we spend so much money, try to lower in conservatives to say you should support, help us and support this because it will save a bunch of money in the judicial system and taxpayers save money, but who thinks one of the elderly people who has been in prison for mandatory minimum sentence that they're going to get out and not be on public assistance? Of course, they are.

They're going to need housing. They will need medical care. They'll need food stamps. Probably at the end of the day a wash.

BECKEL: It's 87,000 bucks a year to incarcerate a prisoner.

GUTFELD: You can make that cheaper.

BOLLING: So, if they're going to remove the mandatory minimums, all the people who are in jail, not elderly, are they not going to let them --

PERINO: No, there are all these different criteria. This is why I also it's very confusing. You have 98 different districts. Who is to say as a drug dealer you're not going to form shop, figure where is the best place for me to start dealing drugs?

GUILFOYLE: You would. People go there, sanctuary cities, the same thing, you flock, water takes the path of least resistance, hook me up, San Francisco here I come.

BECKEL: Can I give you a classic example? I sponsored a kid that's

21 years old in AA and NA. This kind went to Suffolk County. He's got a drug problem. He sold five grams. He got picked up. He's going away.

They want to put a felony, six months on him, he was going to Queens College, he never had a record.

The judge should have discretion to let the kid go. But prosecutor said no discretion, I think it is obscene.

GUILFOYLE: That's a state case, that's not federal.

BECKEL: I know. But still.

PERINO: Smart of the attorney general to do this in August when he had nothing also to talk about.

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The Five, hosted by Bob Beckel, Eric Bolling, Kimberly Guilfoyle, Greg Gutfeld, Dana Perino, Juan Williams, and Andrea Tantaros, airs on Weekdays at 5PM ET on Fox News Channel.